PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CERES MARINE TERMINALS,
INCORPORATED,
Petitioner,
v.
No. 10-1122
ROBERT GREEN; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(09-294)
Argued: May 12, 2011
Decided: September 6, 2011
Before DUNCAN and AGEE, Circuit Judges, and
David C. NORTON, Chief United States District Judge for
the District of South Carolina, sitting by designation.
Reversed and remanded by published opinion. Chief District
Judge Norton wrote the opinion, in which Judge Duncan and
Judge Agee joined.
2 CERES MARINE TERMINALS v. GREEN
COUNSEL
Lawrence P. Postol, SEYFARTH SHAW LLP, Washington,
D.C., for Petitioner. Gregory E. Camden, MONTAGNA
KLEIN CAMDEN, LLP, Norfolk, Virginia, for Respondents.
OPINION
NORTON, Chief District Judge:
Petitioner Ceres Marine Terminals, Inc. ("Ceres") appeals
the decision of the United States Department of Labor’s Ben-
efits Review Board ("BRB") affirming an administrative law
judge’s ("ALJ’s") award of disability benefits, two hearing
aids, and attorney’s fees to respondent Robert Green
("Green") pursuant to the Longshore and Harbor Workers’
Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950. Ceres
contends that the ALJ contravened United States Supreme
Court precedent by failing to adhere to the burden of proof as
established in Director, OWCP v. Greenwich Collieries, 512
U.S. 267 (1994). We agree with Ceres. For the reasons set
forth below, we reverse the BRB’s decision and remand for
further action consistent with this opinion.
I.
When he appeared before the ALJ on June 4, 2008, Green
was fifty-nine years old and had been a member of the Inter-
national Longshoremen’s Association for twenty-three years.
He testified that he was exposed to a variety of loud noises
while working for Ceres. In 2007, Green’s job entailed
removing and installing cargo container "shoes," which are
twist locks that fasten one container to another on a cargo
ship. J.A. 42-43. Green stated that when the port crane
unloads containers from a cargo ship, it frequently slams the
containers onto the waiting truck chassis below, sometimes as
CERES MARINE TERMINALS v. GREEN 3
often as 300-400 times in an eight-hour shift. Green’s job
required him to stand near the truck chassis so he could tend
to the "shoes." In addition, Green testified that he was
exposed to noise from the crane when it removed hatch covers
from ships and from diesel forklifts. He said that he worked
next to, and "almost underneath," the crane, and he drove die-
sel forklifts, on and off, for more than twenty years. J.A. 45-
46. While he never wore hearing protection while working at
the dock, he sometimes put cotton in his ears if the noise was
particularly loud.
Green testified that he had his hearing checked at the sug-
gestion of his wife and some of her friends. Joseph Gillespie,
a licensed and board-certified audiologist with fifteen years of
experience, performed a comprehensive audiological evalua-
tion of Green on July 11, 2007. The evaluation reflected that
Green suffered from a 45 db hearing loss in his left ear at the
4,000 Hz frequency. Mr. Gillespie noted that this type of loss
is significant because the sounds of "the S’s and F’s and K’s
and TH’s" are produced in the 3,000 to 4,000 Hz frequency
range. J.A. 146. Mr. Gillespie reported "slight to mild senso-
rineural hearing loss, with the left ear worse than the right"
and concluded that the hearing loss was consistent with expo-
sure to noise. J.A. 115. Mr. Gillespie determined that Green
suffered from a 3.75% binaural hearing loss.
During his deposition on May 7, 2008, Mr. Gillespie testi-
fied that he discussed various hearing aid options with Green
based on his lifestyle, explaining the advantages and disad-
vantages of each option. Ultimately, Mr. Gillespie recom-
mended that Green use Widex Inteo in-the-ear hearing aids,
at a cost of $6,500 per pair. Green subsequently filed a dis-
ability claim with his employer, Ceres, pursuant to the
LHWCA. Ceres denied the claim.
After being retained by Ceres, on November 8, 2007, Stuart
Cohen, a licensed and board-certified audiologist with thirty-
three years of experience, tested Green’s hearing. The test
4 CERES MARINE TERMINALS v. GREEN
performed by Mr. Cohen resulted in a finding of 0% binaural
hearing impairment. Despite this finding, Mr. Cohen reported
that Green had "mild to moderate, bilateral, sensorineural
hearing loss" and recommended that Green use the Phonak
UNA MAZ behind-the-ear hearing aid because it reduces the
"‘voice-in-the-barrel’ affect commonly reported by hearing
aid users," and "accentuates high frequency gain where the
claimant needs amplification the most." J.A. 111. The Phonak
hearing aids cost $2,500 per pair. During his deposition on
May 7, 2008, Mr. Cohen qualified his November 8, 2007
report, stating that he would only recommend a hearing aid
for Green’s left ear. Mr. Cohen testified that he would not rec-
ommend a hearing aid for Green’s right ear because his "hear-
ing [in that ear] is essentially normal at all but one
frequency," and Mr. Cohen does not prescribe hearing aids for
that type of hearing loss. J.A. 96.
When asked about the reliability of the two tests, Mr. Gil-
lespie testified that for two audiograms to be within "good
reliability," there should be no more than 5 db difference
between the tests. J.A. 122. The tests showed differences of
more than 5 db at 500 Hz (both ears), 2000 Hz (left ear), and
3000 Hz (right ear). The tests also resulted in different speech
discrimination scores. Mr. Cohen’s test reflected a speech dis-
crimination score of 100% in both ears, but Mr. Gillespie’s
test resulted in a score of 100% in the right ear and 92% in
the left. Mr. Gillespie testified that the differences in the test
results did not appear to be caused by a problem with either
test. He opined that the differences may have been caused by
either (1) Green’s inattentiveness during the test, or (2) the
presence of a cold or other medical condition, which could
have affected his middle ear pressures. Mr. Gillespie recom-
mended that Green get a third opinion to resolve the discrep-
ancies between the two tests; however, Green did not do so.
Mr. Cohen testified that a variation of 5 db is the accepted
outer limit of "test/retest variability." J.A. 80. He also testified
that audiogram results should not vary significantly because
CERES MARINE TERMINALS v. GREEN 5
the equipment used by all audiologists should be calibrated to
American National Standards Institute ("ANSI") standards.
The formal hearing before the ALJ was held in Charleston,
South Carolina, on June 4, 2008. The ALJ found that the
audiograms conducted by Mr. Gillespie and Mr. Cohen were
both credible and "entitled to equal probative value." J.A. 22.
Although citing to Greenwich Collieries for the rule that
Green had the burden of proof, the ALJ held that if more than
one credible audiogram exists (even though one showed no
compensable hearing loss), it was within his authority to aver-
age the results of two audiograms to determine the amount of
hearing loss, citing Steevens v. Umpqua River Navigation, 35
Ben. Rev. Bd. Serv. (MB) 129, 133 (2001), as his authority
to do so. The ALJ then found that as both tests were entitled
to "equal probative value," Green was entitled to disability
benefits for a 1.875% binaural hearing loss. J.A. 22. The ALJ
also found that "there is no medical justification for refusing
to utilize a less expensive, but equally functional, hearing
aid." J.A. 24. Accordingly, he ordered Ceres to pay for all of
Green’s reasonable and necessary medical expenses arising
from his hearing loss disability, including the cost of batteries
and a maximum of $3,000 for the two Phonak hearing aids
initially recommended by Mr. Cohen. J.A. 24. The ALJ later
awarded attorney’s fees to Green in the amount of $10,390.10.1
Ceres appealed the ALJ’s decision to the BRB. On January
12, 2010, the BRB issued its decision and order, affirming the
decision of the ALJ. The BRB held that an ALJ "may average
the results of reliable audiograms to determine the extent of
a claimant’s hearing loss, thus affording an administrative law
judge the discretion to determine the weight to be accorded to
the evidence of record." J.A. 4 (citing Steevens, 35 Ben. Rev.
Bd. Serv. (MB) at 129). Specifically on point for the issue in
this case, the BRB held that "[t]he decision in Greenwich Col-
1
Title 33 U.S.C. § 928 provides for the award of attorney’s fees when
a claim is successfully prosecuted under the LHWCA.
6 CERES MARINE TERMINALS v. GREEN
lieries does not preclude the administrative law judge from
averaging impairment ratings where he finds audiograms to
be equally probative." J.A. 4. Ceres timely appealed the BRB
decision to this court pursuant to 33 U.S.C. § 921(c).
Ceres argues that the decision of the BRB should be
reversed and the award of disability benefits, hearing aids,
and attorney’s fees vacated because "the Claimant did not
carry his burden of proof" as a matter of law. Appellant’s Br.
20. Citing Greenwich Collieries, Ceres asserts that when evi-
dence submitted by opposing parties is considered equally
probative, the claimant must lose because he bears the burden
of proof. Next, Ceres argues that the ALJ’s decision is not
supported by substantial evidence because Mr. Gillespie
admitted that respondent may have been inattentive or had a
cold when he was tested, and recovery under the LHWCA, 33
U.S.C. § 908(c)(13), requires substantial evidence of perma-
nent hearing loss. Finally, Ceres argues that the ALJ’s deci-
sion to average the two audiograms encourages workers’
compensation benefits seekers to obtain inaccurate test results
in an effort to receive benefits.
In his response brief, Green argues that the ALJ did not err
in averaging the two audiograms because both were credible,
entitled to equal probative value, and showed that both
audiologists diagnosed Green with a hearing impairment
requiring hearing aids. Green argues that he has met the bur-
den of proof that his hearing loss was work-related, and if a
dispute exists, it is a dispute as to the amount of benefits
owed, not whether he is entitled to benefits. Green argues that
Greenwich Collieries does not preclude an ALJ from averag-
ing hearing impairment scores if both are equally probative
and BRB precedent firmly supports this practice.
Green also cites the recent unpublished Fourth Circuit case
of Northrop Grumman Shipbuilding v. Kea, No. 08-2376,
2010 WL 148349 (4th Cir. Jan. 14, 2010), which affirmed an
ALJ’s decision to average leg impairment ratings submitted
CERES MARINE TERMINALS v. GREEN 7
by two doctors. Green asserts that the ALJ is not generally
required to accept the lowest audiogram score and the ALJ’s
decision to average the two scores was rational, supported by
substantial evidence in the record, and based on a credibility
determination that cannot be properly called into question by
this court.
II.
We review BRB decisions "for errors of law and to ascer-
tain whether the Board adhered to its statutorily mandated
standard for reviewing the ALJ’s factual findings." Newport
News Shipbuilding & Dry Dock Co. v. Riley, 262 F.3d 227,
231 (4th Cir. 2001) (citing Gilchrist v. Newport News Ship-
building & Dry Dock Co., 135 F.3d 915, 918 (4th Cir. 1998)).
"The factual findings of the ALJ must be affirmed if sup-
ported by substantial evidence." Id. (citing 33 U.S.C.
§ 921(b)(3)). "Review of legal questions is de novo, and no
deference is due to the Board’s legal conclusions." Id. (citing
Gilchrist, 135 F.3d at 918).
"The Supreme Court has defined ‘substantial evidence’ to
mean ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’" USCOC of Va.
RSA #3 v. Montgomery Cnty. Bd. of Sup’rs, 343 F.3d 262, 271
(4th Cir. 2003) (quoting Universal Camera v. NLRB, 340 U.S.
474, 477 (1951)). "It requires more than a mere scintilla but
less than a preponderance." Id. (citing 360° Commc’ns Co. v.
Bd. of Sup’rs of Albemarle Cnty., 211 F.3d 79, 83 (4th Cir.
2000)). "The substantiality of evidence must take into account
whatever in the record fairly detracts from its weight." Uni-
versal Camera, 340 U.S. at 488. However, "[o]n review, the
ALJ’s findings may not be disregarded on the basis that other
inferences might have been more reasonable. Deference must
be given to the fact-finder’s inferences and credibility assess-
ments, and we have emphasized the scope of review of ALJ
findings is limited." Newport News Shipbuilding & Dry Dock
Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988) (citing New-
8 CERES MARINE TERMINALS v. GREEN
port News Shipbuilding & Dry Dock Co. v. Dir., OWCP, 681
F.2d 938, 941 (4th Cir. 1982)).
III.
As a preliminary matter, the court expresses concern as to
whether the ALJ’s determination that the audiograms were
"equally probative" was supported by substantial evidence.
Despite the finding that "[n]either party [had] convincingly
shown that the other side’s audiogram was flawed," J.A. 21,
Mr. Gillespie, Green’s own audiologist, conceded that the two
audiogram results failed to demonstrate "good reliability"
because they were not within 5 db of each other. J.A. 122. Mr.
Gillespie admitted that the lower of the two test results—Mr.
Cohen’s finding of 0% binaural hearing loss—may be correct,
or that Green may have suffered from a temporary medical
condition which caused the discrepancy in the two test results.
Recognizing these possibilities, Mr. Gillespie recommended
that Green undergo a third audiogram, advice Green failed to
follow. It is thus difficult for the court to find that substantial
evidence supported the ALJ’s conclusion that the audiograms
were "equally probative."
However, even if we assume without deciding that the ALJ
was justified in finding the two sides’ evidence equally proba-
tive, Green’s claim faces another insurmountable hurdle.
Ceres also argues that in light of the Supreme Court’s holding
in Greenwich Collieries, the ALJ erred by making an award
of binaural hearing loss disability benefits upon finding that
the evidence for and against an award was "equally proba-
tive." This is purely a question of law which the court must
review de novo.
In Greenwich Collieries, the Court reviewed two separate
decisions of the United States Court of Appeals for the Third
Circuit. The first involved a claim under the Black Lung Ben-
efits Act ("BLBA"), and the second—the decision relevant to
the instant case—involved a claim made under the LHWCA.
CERES MARINE TERMINALS v. GREEN 9
The issue presented by both cases was whether the "true
doubt" rule, which shifts the burden of persuasion to the party
opposing a benefits claim and grants benefits to a claimant if
the evidence is equally balanced, was inconsistent with § 7(c)
of the Administrative Procedure Act ("APA"). 512 U.S. at
270. Section 7(c) "states that ‘[e]xcept as otherwise provided
by statute, the proponent of a rule or order has the burden of
proof.’" Id. at 269 (quoting 5 U.S.C. § 556(d)). After discuss-
ing the facts of the BLBA claim, the Supreme Court summa-
rized the factual and procedural history of the LHWCA claim:
Michael Santoro suffered a work-related back and
neck injury while employed by respondent Maher
Terminals. Within a few months Santoro was diag-
nosed with nerve cancer, and he died shortly thereaf-
ter. His widow filed a claim under the LHWCA
alleging that the work injury had rendered her hus-
band disabled and caused his death. After reviewing
the evidence for both sides, the ALJ found it equally
probative and, relying on the true doubt rule,
awarded benefits to the claimant. The Board
affirmed, finding no error in the ALJ’s analysis or
his application of the true doubt rule. The Court of
Appeals reversed, holding that the true doubt rule is
inconsistent with § 7(c) of the APA.
Greenwich Collieries, 512 U.S. at 270. The Court granted cer-
tiorari to resolve the conflict between the "true doubt" rule
and § 7(c).
As a threshold matter, the Court ruled that § 7(c) applies to
the LHWCA. Id. at 271. The Court then discussed at length
whether the "burden of proof" mentioned in § 7(c) refers to
the burden of persuasion or the burden of production. Id. at
272-80. The Court decided that the "burden of proof" refers
to the burden of persuasion and held that "the true doubt rule
violates § 7(c) of the APA." Id. at 281. Thus, "when the evi-
dence is evenly balanced, the benefits claimant must lose." Id.
10 CERES MARINE TERMINALS v. GREEN
This court recognized the impact of Greenwich Collieries
in Lemaster v. Imperial Colliery Co., No. 94-2657, 1995 WL
764227 (4th Cir. Dec. 28, 1995). In that case, we held that the
ALJ must adhere to the Court’s mandate in Greenwich Col-
lieries when considering conflicting X-ray evidence in a
BLBA claim on remand. Id. at *2 ("If on remand the ALJ
concludes that the evidence is in equipoise, benefits must be
denied.") (citing Greenwich Collieries v. Dir., OWCP, 990
F.2d 730, 737 (3d Cir. 1993), aff’d, 512 U.S. 267 (1994)).
The ALJ and BRB briefly acknowledged Greenwich Col-
lieries in their decisions and orders; however, they summarily
dismissed its application to the instant case and chose to rely
instead on prior BRB and ALJ decisions. Specifically, they
both cited Steevens, and the ALJ cited J.C. v. Atlantic Techni-
cal Services, 41 Ben. Rev. Bd. Serv. (MB) 181 (2007). Both
of these decisions proclaim that an ALJ has the authority to
average test results to determine the extent of a claimant’s dis-
ability.
We find the ALJ’s and BRB’s reliance on Steevens and J.C.
unavailing. Greenwich Collieries compels us to conclude that
Green failed to meet his burden of proof to establish disabil-
ity, even if we accept that the evidence refuting and confirm-
ing hearing loss was in equipoise. The Supreme Court made
this point abundantly clear: "[W]hen the evidence is evenly
balanced, the benefits claimant must lose." Greenwich Col-
lieries, 512 U.S. at 281. Because Green failed to carry the
burden of proof allocated to him, his claim failed as a matter
of law.
We also find Green’s reliance on Northrop Grumman
unavailing, for several reasons. Preliminarily, of course, it is
an unpublished, nonprecedential decision which could not
contravene the holding of the Supreme Court in Greenwich
Collieries. Moreover, two factors make Northrop Grumman
distinguishable. First, there was no finding in Northrop Grum-
man that the competing evidence was in equipoise. Rather,
CERES MARINE TERMINALS v. GREEN 11
the ALJ in that case chose to credit each doctor’s assessment
of the plaintiff’s level of disability for different reasons after
explaining each one’s pros and cons. See Northrop Grumman,
2010 WL 148349, at *4. Second, the ALJ there was not faced
with two tests that contradicted each other as to whether a dis-
ability existed at all, but simply had to determine the level of
disability. Here, by contrast, Green fails to meet the threshold
requirement of establishing disability—a requirement for
which Greenwich Collieries places the burden of proof on his
shoulders.2 Northrop Grumman, therefore, does not
strengthen Green’s argument.
The BRB committed a clear error of law when it affirmed
the ALJ’s decision and order, relying on its own precedent
rather than the controlling law set forth by the Supreme Court
in Greenwich Collieries. Once the unchallenged finding was
made by the ALJ that the evidence was "equally probative,"
the claimant failed to meet his burden of proof as a matter of
law and his claim for binaural hearing loss benefits should
have been denied. The contrary actions by the ALJ and the
BRB were thus clear error. See Mann v. Director, OWCP, No.
96-9509, 1997 WL 57092, at *3 (10th Cir. Feb. 11, 1997).3
For the reasons set forth above, the BRB decision is
reversed, the current award of disability benefits, two hearing
aids, and attorney’s fees is vacated, and the case is remanded
to the ALJ only as to the limited issue of the award of attor-
ney’s fees.4
REVERSED AND REMANDED
2
In other words, we do not take the position that an ALJ can never aver-
age evidence presented by two medical professionals to make a determina-
tion as to the extent of disability. We simply hold that when there is
contradictory, equally probative evidence as to whether a disability exists
at all, an ALJ cannot average a "zero" result with a higher result to find
that a disability exists.
3
Because we reverse the BRB decision due to Green’s failure to meet
his burden of proof, we do not address the other arguments raised by
Appellant.
4
Appellant has conceded that it agreed to furnish Green a single left ear
Phonak hearing aid. The only issue on remand is what attorney’s fees, if
any, Green is entitled to receive based on the receipt of that hearing aid.